(203 P.) 4. Criminal law 214-Abandonment of complaint, and filing of new complaint charging aggravated offense, held not violative of defendant's rights. Abandonment of complaint filed with a justice of the peace, charging defendant with undawfully having possession of intoxicating liquor, and the filing of another complaint with the same justice, charging him with unlawfully having possession of intoxicating liquor and with having been previously convicted of the same offense, and a trial of defendant for such aggravated offense in the superior court after such justice of the peace had heard the cause as a committing magistrate, held not violative of defendant's rights. that on November 6, 1918, defendant had been duly convicted in the superior court for Spokane county of the offense of unlawfully having an excess quantity of liquor in his possession, all as charged in the informatrial court rendered judgment against the tion filed against him in this case. defendant upon these findings, adjudging him guilty of the aggravated offense. From this judgment he has appealed to this court. The The words, "excess quantity of liquor," found in the record of the former conviction of the appellant, introduced in evidence in this case, and also found in the information and verdict in this case, indi5. Criminal law 446-Certified record of cate that his former conviction was under court not conclusive evidence of previous section 22 of Initiative Measure No. 3, adoptconviction, in prosecution for aggravated of-ed by a vote of the people in November, fense. 1914, reading as follows: Rem. Code 1915, § 6262-22, as amended by Laws 1917, p. 61, § 15, making the unlawful possession of intoxicating liquor after previous conviction an aggravated offense, providing that a duly certified record of the court "shall be sufficient evidence and proof of such previous conviction," does not make such record conclusive proof of defendant's previous conviction, but merely provides for its introduction as any other evidentiary fact, to be considered by jury on the issue of previous conviction. 6. Criminal law 395-Liquor seized in violation of defendant's constitutional rights not admissible in evidence. Where sheriff arrested defendant and took possession of his automobile without a search warrant, liquor taken from the rear of the automobile on arrival at courthouse was not admissible in prosecution of defendant for having unlawful possession of liquor, though search warrant had been issued prior thereto, since the seizure of the liquor took place when sheriff took possession of automobile, before issuance of search warrant, in violation of defendant's constitutional rights under Const. art. 1, §§ 7, 9, and Const. U. S. Amends. 4, 5, and not when actually taken from automobile. Department 2. 66 * Section 17h. It shall be unlawful for any person to have in his possession any intoxicating liquor other than alcohol. * "Sec. 15. That section 32 of said Initiative Measure No. 3 be amended to read as follows: "Section 32. Every person convicted the second time of a violation of any provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not less than two hundred nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor Appeal from Superior Court, Adams Coun- more than six months and every person conty; John Truax, Judge. Fred Gibbons was convicted of unlawfully having in his possession intoxicating liquor, as a second offense, and he appeals. versed and remanded, with directions. victed the third time of a violation of any provision of this act shall, for such third and each subsequent conviction, be punished by imprisonment in the penitentiary for not less than one nor more than five years. Every prosecuting attorney, and every justice of the peace, having knowledge of any previous conviction or John T. Mulligan, of Los Angeles, Cal., convictions of any person accused of violating for appellant. Re W. O. Miller, of Ritzville, for the State. PARKER, C. J. Upon an information filed in the superior court for Adams county by the prosecuting attorney of that county, the defendant Gibbons was by a jury found guilty of the offense of unlawfully having in his possession in that county on December 24, 1920, intoxicating liquor, to wit, twelve quarts of whisky; the jury further finding this act, shall in preparing a complaint, information or indictment, for subsequent offenses, allege such previous conviction or convictions therein, and a certified transcript from the docket of any justice of the peace, or a copy of the record of any court of record, certified by the clerk thereof under the seal of the court, shall be sufficient evidence and proof of such previous conviction or convictions." " [1] It is first contended in appellant's behalf that section 11 of the act of 1917, above For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes quoted, which is amendatory to Initiative Measure No. 3 of 1914, is rendered void and of no effect by the passage of the National Prohibition Law, the so-called Volstead Act (41 Stat. 305), which reads in part as follows: * It shall not be unlawful to possess liquors in one's private dwelling. * 41 Stat. p. 317, § 33. The argument is that our state law is in conflict with the federal law touching the possession of liquor in one's dwelling; that is, that the ban of our law rests upon liquor possessed in one's dwelling as well as possess ed elsewhere, while the federal law in terms makes possession in one's dwelling lawful, and that therefore the state law must be held of no effect touching the question of unlawful possession of intoxicating liquor. We think that we are not here called upon to enter upon the interesting inquiry as to when and under what circumstances, if any, state and federal laws, passed in pursuance of the state and federal legislative “concurrent power to enforce" the Eighteenth Amendment to the Federal Constitution, may become so in conflict that one of such laws or some part thereof must give way to the other. In this case there is no attempt to enforce our state law, so as to come in conflict with the federal law with relation to the possession of liquor in "one's private dwelling." Even conceding here, for the purpose of argument, that as to such possession there is such a conflict as to make one law superior in that respect to the other, the possession of the liquor charged against appellant in this case was concededly not in his private dwelling. We think it is plain that, in so far as our state law is sought to be enforced in this case, it is in no event in conflict with the federal law. [2] It is conceded by counsel for appellant that: Initiative Measure No. 3 was adopted by the people at the November election of 1914, and such adoption evidenced by proclamation of the Governor on December 5, 1914. The concluding section of that measure and act reads as follows' "Sec. 33. This act shall take effect and be in full force and effect from and after the first day of January, 1916." Laws of 1915, p. 17. The amendatory act of 1917, above quoted from, was passed by the Legislature and approved by the Governor on February 19, 1917; more than two years following the vote of the people upon Initiative Measure No. 3, and the proclamation of the Governor evidencing the adoption of that measure, but less than two years following January 1, 1916, the time of the taking effect of that act by its terms as expressed in section 33 thereof. [3] The argument is, in substance, that the words "two years following such enactment," in the above quotation from the Seventh Amendment to our Constitution, mean two years following the time when an initiative measure by its own terms is to take effect, and that since Initiative Measure No. 3 by its own terms was not to take effect until January 1, 1916, it could not be constitutionally amended within two years from that date. We cannot agree with this view. The word "enactment," used with reference to the making of a law, may possibly under some circumstances be used in such manner, with reference to some act to be done or duty to be performed in pursuance of its terms, as to call for its construction as meaning "taking effect"; but we see nothing in the initiative provision of our Constitution to suggest any such meaning. The word "enactment," with reference to the making of a law, means under almost all conceivable conditions the exercise of the legislative power bringing the law into existence. This we think is true, whether such legislative power be the act of the people in making or amending their Constitution, the act of the people in making or amending a statute, or the act of a representative legislative body in making or amending a statute. When the people or body possessing such legislative power have completely exercised their power in bringing the law into existence, the enactment of the law has become complete. Whether Initiative Measure No. 3 was completely enacted in a legal sense, when voted upon by the people in November, 1914, or not until the issuance of the Governor's proclamation evidencing the vote of the people thereon, is not necessary to decide here. That measure in any event became com"(c) No act, law, or bill approved pletely enacted not later than when the by a majority of the electors voting thereon Governor issued his proclamation on Deshall be amended or repealed by the Legisla-cember 5, 1914. We conclude that after two ture within a period of two years following years following that date, in any event, Insuch enactment." itiative Measure No. 3 would be subject to The state prohibition law has not been abrogated, suspended, or superseded by the National Prohibition Act, except in so far as the state prohibition law is in conflict with the National Prohibition Act." Our late decisions in State v. Turner, 196 Pac. 638, and State v. Woods, 198 Pac. 737, render it plain that such is the settled law of this state. It is contended that the amendatory act of 1917, above quoted from, and under which this prosecution is being waged, is void and of no effect, because it was enacted by the Legislature in violation of the provision of the initiative and referendum provision of the Seventh Amendment to our Constitution, reading as follows: (203 P.) be constitutionally amended by the Legisla-fed by the election of the prosecution to abanture. This, as we have seen, was done by don its first complaint in the justice court, the legislative amendatory act of 1917 here and file a new complaint before the justice in question; hence that amendatory act was charging the higher offense, and inducing constitutionally enacted in so far as the the justice to hear the cause only as a comquestion of time following the enactment of mitting magistrate. Surely the abandonment Initiative Measure No. 3 is concerned. of a prosecution which has been instituted looking to final judgment in a justice court does not militate against the right and power of the prosecuting attorney and the superior court to proceed upon proper information filed in the superior court, to a trial of the accused for a higher offense, of which the superior court has jurisdiction. [4] Contention is made in appellant's behalf that the superior court erred in putting him upon trial to answer a complaint different from that which was first filed against him in the justice court. On December 24, 1920, appellant was charged by the prosecuting attorney by a complaint filed with a justice of the peace, with the simple [5] Contention is made in appellant's beoffense of unlawfully having in his posses- half, which we understand to be, in subsion intoxicating liquor, as being committed stance, that the superior court erred in reon that day. This complaint was filed, ap-ceiving in evidence a duly certified record of parently looking to a final trial of appellant the superior court of Spokane county eviin the justice court; but before the case dencing appellant's prior conviction as chargproceeded to trial on that complaint the ed. The argument is addressed wholly to prosecuting attorney discovered, as he the question of the constitutionality of the thought, that appellant had been previously concluding language of section 32 of Initiaconvicted in the superior court for Spokane tive Measure No. 3 as amended by section county of the offense of having an excess 15 of the act of 1917, above quoted, which quantity of liquor in his possession. The is that such certified record of conviction prosecuting attorney thereupon filed another "shall be sufficient evidence and proof of complaint with the same justice, charging such previous conviction or convictions." It appellant as in the first complaint, and also is argued that this provision is unconstitucharging such previous conviction. This tional, upon the theory that it is an attempt complaint was filed under section 32 of In- on the part of the Legislature to make itiative Measure No. 3 as amended by section such certified record of conviction conclusive 15 of the act of 1917, above quoted. The proof of the previous conviction or convicjustice then proceeded, upon motion of the tions sought to be proven. We think at all prosecuting attorney, to hear the cause as a events such argument is wholly without committing magistrate, evidently being of avail here. There is nothing in the court's the opinion that a conviction of appellant instructions to the jury, nor elsewhere in of such aggravated offense would call for the the record, indicating that the jury was infliction of a punishment of a greater de-advised or told that such certified record of gree than a justice court had jurisdiction to conviction was conclusive proof of appelfinally adjudge. That hearing resulted in lant's previous conviction. It seems plain an order of the justice made only as a comto us that as long as the jury were left free mitting magistrate, holding appellant to an- to find for or against appellant upon the swer in the superior court. Thereafter an question of his previous conviction, includinformation was filed by the prosecuting at- ing, of course, the question of his identity torney in the superior court charging appel- with the person who the record purported lant with the aggravated offense as in the to show was previously convicted, no consecond complaint filed with the justice, upon stitutional right guaranteed to him was inwhich appellant was duly arraigned, plead- vaded. The certified record of previous coned not guilty, and was tried and convicted. viction was simply introduced as any other The argument seems to be that appellant evidentiary fact, and the jury properly left had the right to be tried and finally adjudg-free to weigh it as such. It may have been ed guilty or not guilty in the justice court upon the first complaint filed therein; this upon the theory that that complaint charged an offense which the justice court could hear and render a final judgment upon. We fail to see in what respect appellant's rights were in the least prejudiced by the course pursued by the prosecution. Manifestly the superior court had jurisdiction over the aggravated offense for which the appellant was tried upon information filed in that court. The jurisdiction, power, and duty of that court to proceed to trial upon that information, we think, were not in the least lessen sufficient to prove such previous conviction, if appellant was identified as the one so indicated as being convicted; but the jury was not compelled as a matter of law to so find. This, we think, is all that the statute means. Some errors are assigned upon the giving of the court's instructions to the jury. These questions, however, are presented to us in such manner as to make their disposition quite unsatisfactory in the light of the record before us. We may observe, however, that one or two of these instructions, especially that numbered 9, are somewhat unfortunate lawfulness of the seizure of the whisky by the sheriff becomes determinative of the claimed ly worded. We think it sufficient to here observe that upon a new trial the questions presented, touching these instructions, will hard-right of the prosecution to introduce it, and ly be likely to arise. Therefore we pass them without further comment. whisky in pursuance of his authority under the search warrant. The fallacy of such a view lies in the fact that the sheriff had before any search warrant was issued completely seized and taken into his possession the appellant, the automobile and all that was in it, including the whisky, though he did not actually see the whisky until after arriving at the courthouse. This was plainly an illegal seizure of the whisky in so far as want of a search warrant is concerned, and the possession of the sheriff could not be rendered legal by the coming into his hands of the search warrant which was issued after such unlawful seizure. It is equally plain to us that the seizure of the whisky was not lawful, as incident to ap pellant's arrest, as a seizure of evidence of crime incident to the lawful arrest of an ac the knowledge obtained by the sheriff in its seizure, in evidence in this case against ap[6] We now come to a claim of error, made pellant. It is argued that, when the whisky in appellant's behalf, which we feel constrain- was actually brought into view upon the ed to hold must be sustained. It is that the opening of the suit case at the sheriff's office, trial court erred in admitting in evidence cer- he then having in his possession a search tain bottles of whisky taken from the posses- warrant authorizing him to search for and sion of appellant by the sheriff of Adams coun-seize the whisky, his act at that time must ty without the authority of any search war- be considered as a then lawful seizure of the rant and at a time when the sheriff had no authority by warrant or otherwise to arrest appellant. On the day in question appellant drove in an automobile from Spokane to Ritzville. The automobile being stopped on a street at Ritzville for a short time, the sheriff, seeing appellant occupying the driver's seat in it there, suspected that appellant had intoxicating liquor in his unlawful possession in the automobile. The sheriff thereupon telephoned to his office at the courthouse and told some one there presumably one of his deputies—to "get a search warrant for that car," giving the number of the car. Immediately thereafter without waiting for a search warrant, and not knowing when one might be issued, and not having any warrant for the arrest of appellant, and having no actual knowledge or visible evidence of the commission by appellant of the offense of unlawfully having intoxicat-cused sometimes becomes lawful, for even the ing liquor in his possession, the sheriff step- arrest of appellant was unlawful; the sheriff ped upon the running board of the automobile having no warrant therefor. It is not preand commanded appellant to drive the car to tended that appellant was suspected of comthe courthouse, at the same time covering mitting a crime amounting to a felony, nor appellant with a gun in a threatening man- that he was disturbing the peace, nor even ner, causing him to obey the command. In that the sheriff had any actual knowledge other words, the sheriff then and there ar- that appellant was then committing the misrested appellant and took possession of the demeanor of unlawfully having intoxicating automobile and all that was in it. They ar- liquor in his possession. We think the most rived at the courthouse some 15 or 20 min-elementary principles of the law of arrest utes later, when the sheriff took from the rear of the automobile a suit case containing the bottles of whisky in question. In the meantime just when is not made plain, but certainly some appreciable time after the sheriff had taken possession of the automobile as above noticed-some one at the sheriff's office had procured from a justice of the peace a search warrant to search the automobile, which search warrant was in the sheriff's office when he arrived there with appellant and the automobile. The bottles of whisky in question were first actually brought into view from the suit case, and to the actual knowledge of the sheriff, upon the arrival of the sheriff and appellant at the sheriff's office. render it plain that the arrest of appellant here in question was unlawful (2 R. C. L. 446-448; 5 C. J. 395), and that therefore the seizure of the automobile and its contents at the time of the arrest had no lawful support as incident thereto. Before appellant entered his plea of not guilty, his counsel in open court demanded of the sheriff and prosecuting attorney the return of the whisky seized by the sheriff, and asked the court to make an order accordingly, offering to then prove facts showing the unlawful seizure of the whisky by the sheriff. This demand was refused, and the application for the order was by the court summarily denied, without hearing and evidence. This move by appellant's counsel was, These events, established beyond dispute by of course, to prevent the introduction of the the state's own witnesses, we have felt the ne whisky in evidence against him upon the cessity of relating in considerable detail, to trial. Thereafter appellant pleaded not the end that the premise upon which we are guilty and the trial proceeded, during which to decide whether or not the seizure of the the whisky was introduced in evidence by whisky was unlawful, be made plain; since, as the prosecution over the objection of appelwe shall presently see, the lawfulness or un-lant's counsel, after the facts showing the (203 P.) manner of its illegal seizure by the sheriff as | government wherein the accused was charged above related, had fully appeared by the tes- "with having sold whisky on which the tax timony of the state's own witnesses. There required by law had not been paid." The is here invoked in appellant's behalf, in sup-facts showing an unlawful seizure of the port of the contention that the trial court whisky, and the holding of the court that the erred in admitting the whisky in evidence evidence so obtained could not be used against against him, the guaranties of the federal the accused in that criminal prosecution, are and state Constitutions against unlawful best stated in the language of the decision, as search and the compelling of an accused per- follows: son to give evidence against himself. These guaranties are expressed in the Fourth and Fifth Amendments to the federal Constitution as follows: -and are expressed in sections 7 and 9, "No person shall be compelled in any criminal case to give evidence against himself. We thus quote from both the federal and state Constitutions to show that these guaran "After the jury was sworn, but before any evidence was offered, the defendant presented to the court a petition, duly sworn to by him, praying that there be returned to him described private property of his which it was averred the district attorney intended to use in evidence at the trial, and which had been seized by P. J. Coleman and C. A. Rector, officers of the government, in a search of defendant's house and store 'within his curtilage,' made unlawfully and without warrant of any kind, in violation of his rights under the Fourth and Fifth Amendments to the Constitution of the United States. Upon reading of this petition and hearing of the application, it was denied, and, exception being noted, the trial proceeded. "Coleman and Rector were called as witnesses by the government and testified: That, as deputy collectors of internal revenue, they went to defendant's home, and, not finding him there, but finding a woman who said she was his wife, told her that they were revenue officers and had come to search the premises 'for violations of the revenue law'; that thereupon the woman opened the store and the witnesses entered, and in a barrel of peas found a bottle containing not quite a half pint of il licitly distilled whisky, which they called 'blockade whisky'; and that they then went into the home of defendant, and on searching found two bottles under the quilt on the bed, one of which contained a full quart and the other a little over a quart of illicitly distilled whisky. The tle containing whisky, which the witness Coleman stated 'was not one of the bottles found by him, but that the whisky contained in the same had been found in defendant's house on the bed was poured out of one of the two bottles that under the quilt, as stated.' On cross-examination both witnesses testified that they did not have any warrant for the arrest of the defendant, nor any search warrant to search his house, and that the search was made during the daytime, in the absence of the defendant, who did not appear on the scene until after the search had been made. After these two government witnesses had described how the search was made of defendant's home without warrant, either to arrest him or to search his premises, a motion by counsel to strike out their testimony was denied and exception noted. ties are in substance the same in both, making the law upon the subject as expounded by the Supreme Court of the United States, presently to be noticed, a proper aid in our present inquiry, apart from the question if whether or not these guaranties as expressed in the fed-government introduced in evidence a pint boteral Constitution are of themselves controlling of the rights of persons which may be drawn in question in our state courts under our state laws. The question of the introduction against an accused person of evidence the possession of which is unlawfully obtained in violation of his constitutional rights-as was the evidence here in question-has been the subject of extended discussion by the Supreme Court of the United States in several decisions rendered by that court in recent years. To review those decisions at length here would be to unnecessarily repeat the history of that long struggle for the security of personal rights in the English-speaking world, which induced the adoption of these guaranties into the federal Constitution and into most, if not all, of the state Constitutions of our Union, and the reasons so learnedly expressed in those decisions for giving these guaranties full force and effect. It seems to us enough for present purpose to take note of the last expression of that great court, found in its recent decision rendered February 28, 1921, in Amos V. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. That was a prosecution by the "This statement shows that the trial court denied the petition of the defendant for a return of his property, seized in the search of his home by government agents without warrant of any kind, in plain violation of the Fourth and Fifth Amendments to the Constitution of the United States, as they have been interpreted and applied by this Court in Boyd v. United States, 116 U. S. 616, 5 Sup. Ct. 524, 29 L. Ed. 746, in Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L |